Legal Constraints on the New Anti-Semitism
Holocaust denial is often termed ‘the new anti-Semitism’, but it takes only a cursory glance to see that it reeks of the old. The same tiresome litany — the Jew as fiend, the Jew as conspirator, the Jew as a canker, exploitative, amoral, depraved and always foreign — in short, all that led Hannah Arendt to identify anti-Semitism as ‘an outrage to common sense’2 is to be found there. Any society in which this outrage is perpetrated must respond forcefully, at least to hold it in check if not to blot it out. But how? Some have advocated expansion of the common law torts of libel and defamation — a project judges have not embraced, nor generally legislatures on the civil side. Rather, in the common law world, the instrument to which the state has traditionally turned to curb asocial behaviour that threatens public order is the criminal law. This is the case in Canada whose Criminal Code3 contains three offences that deal directly or indirectly with what is compendiously termed ‘hate propaganda’: advocating genocide;4 public incitement of hatred likely to lead to a breach of the peace;5 wilful promotion of hatred other than in private conversation;6 and until recently a fourth, spreading false news.7
KeywordsCriminal Code Canadian Experience Holocaust Denial Canadian Charter Judicial Notice
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- 2.Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt, Brace and World, Inc., 1966). This is the title to chapter I, pp.3–10.Google Scholar
- 25.The federal Government’s heads of jurisdiction are found at s.91 of the Constitution Act, 1867, and the provincial heads of jurisdiction at s.92. There is an immense jurisprudence on where any particular matter falls under the division of powers, dependent on its characterization, so that some may have a ‘double aspect’. See generally, Peter W. Hogg, Constitutional Law of Canada 3rd edition (Toronto: Carswell, 1992, and continuing Loose Leaf ed).Google Scholar
- 27.There is a vast literature. The standard text is Walter S. Tarnopolsky, Discrimination and the Law, rev. ed. by William F. Pentney (Toronto: Carswell, 1994). The most convenient and complete collection of the jurisprudence is the case reporting series Canadian Human Rights Reporter (1980-), cited as C.H.R.R.Google Scholar